Supreme Court Unanimously Rejects Obama Administration’s Effort to Conduct Warrantless GPS Searches

I previously wrote about the pending case of United States v. Jones and the effort of the Administration to establish precedent allowing the government to follow citizens with Global Positioning Devices (GPS) without any showing of probable cause. I am happy to report that the Court has ruled unanimously against the government and found the practice to be unconstitutional under the fourth amendment. It is a stinging defeat for the Obama Administration but a roaring victory for privacy and civil liberties at a time when good news is rare.

In my prior column, I discussed the limits of the Katz test created in Katz v. United States, 389 U.S. 347. Much of the debate between the justices focuses on this test and its progeny.

The Court divided between a majority opinion penned by Associate Justice Antonin Scalia, concurrences by Associate Justice Sotomayor and Associate Justice Alito.

Scalia emphasizes that privacy protections are broader than the “reasonable expectation of privacy” test:

The Government contends that several of our post-Katz cases foreclose the conclusion that what occurred here constituted a search. . . . But as we have discussed, the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test. The holding in Knotts addressed only the former, since the latter was not at issue. .

It is that reliance on the common-law trespass cases that causes one division on the Court. The application of what the concurrence called “18th-century tort law” is contested by Scalia as “a distortion. What we apply is an 18th-century guarantee against unreasonable searches, which we believe must provide at a minimum the degree of protection it afforded when it was adopted. The concurrence does not share that belief. It would apply exclusively Katz’s reasonable-expectation-
of-privacy test, even when that eliminates rights that previously existed.”

Notably, Ginsburg, Breyer and Kagan joined Alito not Sotomayor. They were right to do so. Alito’s opinion suggests that Scalia’s logic comes uncomfortably close to the old trespass doctrine as the basis for the Fourth Amendment — a concern that I agree with and previously wrote about in the column. Indeed, Alito expressed the same concern over how Katz could lay the seeds for privacy’s destruction:

Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes. New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.

Alito questioned Scalia’s reliance on the original intent when applied to such a modern context for surveillance. However, Scalia responded:

JUSTICE ALITO’s concurrence (hereinafter concurrence) doubts the wisdom of our approach because “it is almost impossible to think of late-18th-century situations that are analogous to what took place in this case.” Post, at 3 (opinion concurring in judgment). But in fact it posits a situation that is not far afield—a constable’s concealing himself in the target’s coach in order to track its movements. Ibid. There is no doubt that the information gained by that trespassory activity would be the product of an unlawful search—whether that information consisted of the conversations occurring in the coach, or of the destinations to which the coach traveled.
In any case, it is quite irrelevant whether there was an 18th-century analog. Whatever new methods of investigation may be devised, our task, at a minimum, is to decide whether the action in question would have constituted a “search” within the original meaning of the Fourth Amendment. Where, as here, the Government obtains information by physically intruding on a constitutionahas undoubtedly occurred.

Alito has the better argument here though he does not truly plug the holes in Katz much as simply recognizing those holes. Unfortunately, Sotomayor gives Scalia the fifth vote to make his analysis the majority opinion. Previously I raised objections to Sotomayor’s nomination due to her views on privacy and free speech. What is strange is that her concurrence has language that recognizes the problems identified by Alito but still concurs with Scalia.

Here is the opinion: 10-1259

44 thoughts on “Supreme Court Unanimously Rejects Obama Administration’s Effort to Conduct Warrantless GPS Searches

  1. Good news this gloomy Monday.

    “Notably, Ginsburg, Breyer and Kagan joined Alito not Sotomayor. They were right to do so.” (Jonathan Turley)

    “Previously I raised objections to Sotomayor’s nomination due to her views on privacy and free speech. What is strange is that her concurrence has language that recognizes the problems identified by Alito but still concurs with Scalia.” (Jonathan Turley)

    I recall her ties to law enforcement… A number of them endorsed her.

    Law enforcement groups endorse Sotomayor

    Originally published June 9, 2009

    Eight national law enforcement organizations are endorsing President Barack Obama’s Supreme Court nominee, Judge Sonia Sotomayor.



    Eight national law enforcement organizations are endorsing President Barack Obama’s Supreme Court nominee, Judge Sonia Sotomayor.

    The groups announced their support for the judge at the White House. Manhattan District Attorney Robert Morgenthau said Sotomayor … is a highly qualified nominee who will be an “able champion of the law.”

    Vice President Joe Biden thanked the organizations for supporting Sotomayor, and said her “lifelong commitment to law enforcement is hard to argue with.” She once worked as an assistant prosecutor in Morgenthau’s office.

  2. Maybe I’m confused, but to me, Scalia’s opinion feels like more of a victory than Alito’s. I feel that Scalia is saying that you get both the trespass doctrine protections and the test under Katz. Seems to me that we get more privacy with Scalia’s interpretation than Alito’s.

    Am I wrong?

  3. I am astonished….Alito….He must not have liked all of the information being published about him…..He is not a Private Citizen, hence does not enjoy the Protections generally afforded Private Citizens….

  4. It’s great to have the decision of course. But I suspect that if the gov’t squeaks “national security”, the process of getting a warrant will be as meaningless and routine, and perhaps even honored in the breach with post hoc validation like FISA warrants.

    Still, to repeat, it’s important to have even a small spoke stuck in the wheel of the ‘great surveillance state’ juggernaut.

  5. Thanks for the report Professor Turley.

    A small drink of pure water in the desert on a hot day seems uniquely satisfying.

    This decision is remarkable in that sense.


    We can be tired and we can be relieved at the same time.

  6. It dawned on the Justices that if the cops could do this GPS thing to you and me then anyone like the media could bug their cars with GPS and guys like Clarence would end up in trouble with the wife when the chickens came home to roost.

  7. Sotomayor is a pull the ladder up beneficiary of equal rights. Scalia always worships original intent– of the Framers of the Constitution up through the Bill of Rights. He is unreconstructed on the 14th Amendment and the origiinal intent of those Framers gets no respect. One has to consult the Twightight Zone for the original intent of the Framers when it comes to GPS. All in all though the decision came out better than anticipated.

  8. Sotomayor was summa at Princeton and editor of the Yale Journal. Don’t see that she is a “beneficiary of equal rights”.

  9. Sotomayor praises Alito’s “incisively” written concurrence but says it doesn’t go far enough then goes with Scalia’s narrower analysis because it’s all that’s necessary in this case?

    That’s the difference between running a seam and simply basting. Basting uses less thread and is quicker but if one wants the garment to wear well and long, one uses more thread and spends more time running the seam.

  10. Wow, and Hooray. I admit I did not expect it, and unanimously no less. I really thought the conservatives were going to argue that this is no different than commonly used public observation without a warrant; e.g. a stake out of a building or tailing of a suspect.

    I am glad I was wrong.

  11. It is good news, no matter who voted for Scalia or Alito.
    You are correct that Sotomayor was a beneficiary of her intelligence and hard work, not of equal rights benefits. Is it because she is a woman or a Latina or both?

  12. I’m glad about this also. I don’t think this will stop the govt. from still doing exactly what they did before but there is a really important aspect of saying something isn’t legal. Too many illegal things have been made “legal” by the US govt. I’m glad any time that doesn’t happen!

  13. Okay, lawyers: I saw a rerun of NCIS recently, in which the crime investigators tasked a government sattelite to follow a car, rather presciently since it was headed for a remote area (which they could not have known) and could not have been easily tailed without raising the suspicion of the driver.

    So, what happens with THAT? Is that different than a normal tail or stake out? Why does “short duration” not violate privacy? After all, even a single-trip tail might follow a husband to an illicit affair the cops did not know about, but could then use against him (like helping them get his wife angry enough to testify against him).

  14. Can you tell me how this would relate to cellphones that that have gps? Can law enforcement warrantlessly track you based upon the signals sent from your iPhone?

  15. @Ed,it’s a good question and not just related to phones, since cars can come with GPS nav systems that communicate back to GM, for instance.

    In that case since the cops don’t have to install the device, just go to where the device communicates the issue of physical trespass seems to be gone.

    And while I think they then should be covered with wiretapping laws requiring warrants, I wonder….

  16. I am still puzzled by Sotomayor’s joining of Scalia’s opinion (and Roberts/Kennedy who have never been so originalist). Perhaps she took the minimalist approach because she is taking a wait and see approach to technology and the Fourth Amendment (her closing paragraph makes this clear) or she is articulating a version of judicial minimalism which is not the worst thing in the world (sweeping decisions can be both good and bad so narrow is sometimes preferable). The problem is that the Katz test is for all intents and purposes a minimalist position and has been for 45 years. Scalia’s trip down trespass doctrine lane was wholly unnecessary and is probably less minimalist in that it reaches way beyond (backwards) the accepted interpretation of the Fourth Amendment. And while Sotomayor clearly sees this, her joining an originalist majority contains more overreach than minimalism.

  17. FWIW, another take,

    United States v. Jones is a Near-Optimal Result
    By Paul Ohm – Posted on January 23rd, 2012 at 1:57 pm

    This morning, the Supreme Court handed down its decision in United States v. Jones, the GPS tracking case, deciding unanimously that the government violated the defendant’s Fourth Amendment rights when it installed a wireless GPS tracking device on the undercarriage of his car and used it to monitor his movement’s around town for four weeks without a search warrant.

    Despite the unanimous result, the court was not unified in its reasoning. Five Justices signed the majority opinion, authored by Justice Scalia, finding that the Fourth Amendment “at bottom . . . assure[s] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted” and thus analyzing the case under “common-law trespassory” principles.

    Justice Alito wrote a concurring opinion, signed by Justices Ginsburg, Breyer, and Kagan, faulting the majority for “decid[ing] the case based on 18th-century tort law” and arguing instead that the case should be decided under Katz’s “reasonable expectations of privacy” test. Applying Katz, the four concurring Justices would have found that the government violated the Fourth Amendment because “long-term tracking” implicated a reasonable expectation of privacy and thus required a warrant.

    Justice Sotomayor, who signed the majority opinion, wrote a separate concurring opinion, but more on that in a second.

    I think the Jones court reached the correct result in this case, and I think that the three opinions in this case represent a near-optimal result for those who want the Court to recognize how its present Fourth Amendment jurisprudence does far too little to protect privacy and limit unwarranted government power in light of recent advances in surveillance technology. This might seem counter-intuitive. I predict that many news stories about Jones will pitch it as an epic battle between Scalia’s property-centric and Alito’s privacy-centric approaches to the Fourth Amendment and quote people expressing regret that Justice Alito didn’t instead win the day. I think this would focus on the wrong thing, underplaying how today’s three opinions–all of them–represent a significant advance for Constitutional privacy, for several reasons:…

  18. Off Topic: An interesting article by Glenn Greenwald at Salon today:

    Rules of American justice: a tale of three cases
    Laws are used to shield egregious war crimes while severely punishing those who publicly discuss them
    By Glenn Greenwald

    Developments in three legal cases, just from the last 24 hours, potently illuminate the Rules of American Justice. First, the Justice Department yesterday charged a former CIA agent, John Kirakou, with four felony counts for having allegedly disclosed classified information to reporters about the CIA’s interrogation program. Included among those charges are two counts under the Espionage Act of 1917, based on the allegation that he disclosed information which he “had reason to believe could be used to the injury of the United States and to the advantage of any foreign nation.” Kirakou made news in 2007 when he told ABC News that he led the team that captured accused Terrorist Abu Zubaydah and that the techniques to which Zubaydah was subjected, including waterboarding, clearly constituted “torture,” though he claimed they were effective and arguably justifiable. He’s also accused of being the source for a 2008 New York Times article that disclosed the name of one of Zubaydah’s CIA interrogators.

    What’s most notable here is that this is now the sixth prosecution by the Obama administration of an accused leaker, and all six have been charged under the draconian, World-War-I era Espionage Act. As EFF’s Trevor Timm put it yesterday: this is the “6th time under Obama someone is charged with Espionage for leaking to a journalist. Before Obama: only 3 cases in history.” This is all accomplished by characterizing disclosures in American newspapers about America’s wrongdoing as “aiding the enemy” (the alleged enemy being informed is Al Qaeda, but the actual concern is that the American people learn what their government is doing). As The New York Times‘ Charlie Savage wrote this morning, Obama has brought “more such cases than all previous presidents combined,” and by doing so, has won the admiration of the CIA and other intelligence agencies which, above all else, loathe transparency (which happens to be the value that Obama vowed to provide more of than any President in history).

    Also yesterday in American justice, a three-judge panel of a federal appellate court in Virginia upheld the dismissal of a lawsuit brought against Donald Rumsfeld and other Bush officials by Jose Padilla, the U.S. citizen who was imprisoned for almost three years without charges or even a lawyer and was systematically tortured to the point of permanent mental incapacitation. Padilla sued the former Defense Secretary on the ground that he had authorized Padilla’s illegal imprisonment and torture. The Obama DOJ vigorously defended Rumsfeld, arguing (a) that Rumsfeld is entitled to immunity on the ground that he had reason to believe his acts were legal and (b) an American citizen has no right to sue a government official for the treatment he receives as a designated “enemy combatant” — even if the treatment in question is torture and prolonged imprisonment without charges.

  19. I know you meant REJECTS GEORGE W BUSH’s ADMIN – PATRIOT ACT POLICIES. This is the only fabricated article of many which mentions Obama tied to this. Obama did not have anything to do with the PATRIOT ACT. Nice try Bafoon.

  20. “They had to have a fall guy….maybe….” -AY


    It’s one crazy world, isn’t it?

    (Worked all night… must sleep…)

  21. AN,

    Would it surprise you in the least? Not from what I know…

    Did you see Anonymous shut down the Motion Picture Industry’s web site as well as the FBI’s….in retaliation for arresting leader….maybe that will get them going…..All in response to SOPA…

  22. Elaine,

    This has NDAA written all over it. In addition to the heinous crime committed by the US Govt. on Padilla, these are principles of denying justice to anyone imprisoned and tortured under NDAA.

    “The Obama DOJ vigorously defended Rumsfeld, arguing (a) that Rumsfeld is entitled to immunity on the ground that he had reason to believe his acts were legal and (b) an American citizen has no right to sue
    a government official for the treatment he receives as a designated “enemy combatant” — even if the treatment in question is torture and prolonged imprisonment without charges.”

    Every wealthy and connected criminal can make the assertion that their lawyer told them their crimes were legal. That’s why they shop around for opinions till they get the “right” one. Item b speaks for itself. It is the groundwork of what will come as well as the imprint of former crimes.

  23. AN,

    Does that really surprise you based upon judges feeling, especially the federal ones are above the law…… Thanks for the update…..

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